Draft Concerning Smoking and Health Issues Prepared by RJR in-House Legal Counsel in Connection with Ongoing Litigation Containing Summaries Rendering Legal Advice to RJR in-House Legal Counsel, RJR Managerial Employees and RJR Employees.
Date: 13 Mar 1992
Length: 19 pages
Jump To Images
Length: 19 pages
Jump To Images
- Ricciardi, L.R.
- Vanevery, P.
- Roberts, G.
- Ammon, T.
- Gerstner Lvj
- Kirkman, J.
Page 1: 515998574
-15- and contAnues to thAs day as CTR. From ~ts ~nception I t~e principal purpose of CTRwas ~o aid and assis~ research ~nto ~obacco usa and hsalt~.5 CT~ d~d no~ £tael~ oonduc~ research. Rather~ it sol~c~ted proposals fo~ f~nd£ng~hrough a g~an~ ~rogram. hdv£aory ~oard ("S~"), a group o~ IndaDandant, highly re~utable ~cion~la~a affiliated wi~ a variety of the ~oDaoco company m~ers of C~. ~e independent s~, however, was responsible fo~ evalua~£ng granfi applloa~ions and deciding whi~ proposals ~o fund. The ~dividual g=an~ reolplen~s were ~lolutely Zree ~o p~llsh thole resea~ Eesul~s. Su~ research was o~.n c=-~ded by ~. Eede=al gove~en~ and by various natio~l health or;anizations. The ~a s~-~t pro~vas ~ev~icle by which ~he industry complied wi~ its p~lic occident made in 195~ to fund sci~ific rose.oh d~signed to answer f~d~tal ~ea~lons regarding amo~in; and h~l~. 5 To date, tl,.e CTR S~ ~an~ p~~~ 1,174
Page 2: 515998575
- 16 - projects, which did no~ Meglnun~il I~S, were Moth differen~ and separate in procedure, scope, and substance from ~he ~esea=oh funded by t~e SAB ~ran~ / progTam. Zn la~e 1965, ~e ~o~acco companies asked outside a~unsel.~o p~ovide legal a~vice hea1~ li~i~a~ion. One oE ~e reco~endati~ns was f~d additional independen~ medical and 8cien~ifia research ~a~ might Me of assls~ance in ~n~in~ and future cases. Thi~ rec~endation was ad~p~ed by complies. ~eseaEch, ~e o~p~les also oonmul~e~ wi~ ~ s~aff, An~lu~In~ the~eolen~ifi~ ai=ec~= -- Once such a pEo~e~wam appearS, acco~in~ depa~men~ dlsb~sed the ~nds from an ~an~ pEogr~.. These new projects, called "C~Speclal PEO~e~s," also we~e oft~co-f~de~ by institutions. ~e =eseaEohe=s weEe pe~i~ed ~o p~lish
Page 3: 515998576
- 17 - ~udge Sarokin's Opinion -- pass£ona~e in tone and Intemperate in language -- is riddled with factual errors and unsuppo~csd inferences. These errors, caused and compounded bF ~udge Sarokin°s legal errors, require vacation of his order. 1. The lynchpin of Judge 8aro~in'e "finding" of fraud is ~/~at petitioners "channeled. research relevan~ ~o smoking and health from the SASgran~ progra~ to CTR Special Projects in orde~ ~o suppress p=ivile~e and work-p=~duc~ BU~ ~a~ is ~la~ly wron~. The =mooEd es~llshes ~ha~ petitioners ~vo~ asserted any p~ivila~e over -- even vh~~se eo~ioa~ion~ involved Zndeed~ Judge Sa~ok~ ge~ed ~0 ~ec~l~e~i8 (Opinion a~ 6), bu~ ~ ignored l~.6 ~o 6 Pe~i~ioners emphasized to Judge Sarokin during o~al ar~en~ ~a~ey produced ~he research ~nd nonp=ivile~ed =o~uni~a~ionm to MR. WEBERz . . . Every plece of [Foa~note continued on sex, page]
Page 4: 515998577
- 18 - documents withheld were co~munlcatlonI by and anong counIel and thei~ olientI whio~ ~e Special Master found weEe opinion wo=k product. clear. CTRSpeoial P:oJects -were conducted by independent soientls~s affiliated with a variety of special pro~ecte ~a~ wai called for ~hat waIn~t ~u~ed eve=. All ~E i~, all of the correspondinci with ~I THE COURT= YOU are saying been ~u~ned eve=? I~:l. WEB,~R: Every bi~. THE COURT~ ove~? MR. WEBER: T~at is wha~ Z tried ~o make clear a momen~ ago. TH~ COU~T| Y~u I~a~:e~ tO answer, and I interrup~ed you. Talkin9 about letters from cottneel as to what should ova:. ~e~Lng in :e~s o~ co~espondence ~o resear~ers, ~n Transcript of July 9, 1991, at 17.
Page 5: 515998578
- 19 - related ~o ~he tobacco ~ndustry." Special ~epor'... a~ 2. Fu~c.~.sr, as the special Masta~ ~ound, ~a~ fro~ bo~n~ hidden~ "~hese~ reoe~c~e~ ~e~_e ~e~'m£~ed .~9 =ublis~ ~he ~esultm o~ thei~ ~sea~=h.'* ,T,.~. a~ 2-3 (emphaslsadded). Researc~ published wi~ fundln~ ~rom CTR Special Projects was specifically credited to the CTR Special Projects p~o~am. ~. at 3.7 3. Judge Safe,in s~atsd ~.ha~ "acco~din~ to discontinued if they seemed unlikely to help pltltioners* defense e~rategy. Petitioners never made tha~ a CTR Speolal P~o~eot was discontinued based on its research results. To ~he contrary, plaintiff's counsel conceded -- and Judge saracen appeared to acknowledge -- tha~ plaintiff had no such evidence.8 7 See ~_q 1967 CTR Board Minutes; see al~o "Immunogenio Prope~les oE Tobacco Smoke," by 8.B. Lahrer, M.R. Wilson, and J.E. Salvag~io, crediting grant suppo~ from "~ fo~2~~- U.S.A. - Special Pro~e¢~. 84 R.Z." • 8 Although plalntlff*s counsel was in pcsaesslon of all of ~he. ~esea~oh proposals considered fo~ fundin~ under she had no evidence that any .much research was to~mlnated because it would ~e adverse to the MS. WALTERSI Wha~ we don'~ have is the [Footnote contlnusd on next:page]
Page 6: 515998579
4, Relying on the 1954 Fran~S~a~emont, advez"cised that CTR was solely an independent oEganlzatlon. Bu~ no~hlng in ~he Frank S~a~emen~ / t.hat C~ could not have o~te= funotlone -- am long the SAB g=an~ p~og~ i~8elf continued ~o be independent. S. Finally, Judge Sarokln s~a~es ~ha~ the ~ha~. A~ mos~ ~he do~en~8 ~i~ed by Judge Sarokln show ~ha~ CTR s~aff and i~m .soion~ifi= di=e=~o= -- any~~ evldenca s~mi~ed by the plaintiff (bu~ independence.I0 documents in the defense files that establish (A) Rases=the=, we will ~en~inue wi~htheg~an~ because ~hle fo~ I~ a~ion puEpoaas. may help u8 . (B) We will ~e~mlnate it lsn'~ ~e~ng us 19-20, 9 OtheE documents show that so~e members of the indUstry had compZaints a~out t~e grant program -- i~onieally~ for heing~Ul independent, sea Opinion a~ 34-35. i0 FOE example, a Sep~embo: 18, 1974 leSSeE f~om David [Footnote ¢on~inuad on next:page]
Page 7: 515998580
require this Cou~-~ to ~onolude ~h&t the dls~iot =our~ co~iSted clear errs= in reversing~e Magistrate. They are also further evidence of ~t~dards and procedures employed by~dgo Sarokin in f~dlng Judge Hedges' ~Ing cloa~iy erroneous. .f reaffirms ~fl~o independence of CTR8 The committee could utilize function and independence of CTR, Tobacco Rssea~c~shculd be resps~"t::sd a~ all ~imss. I~ should continue under its p~ssen~ s~ucture and should be indepsnden~ o£ any £ndust~y supe~vtsion or control.~ Exhibit P ~o PlalntifZ~s Brie£ in fron~ o£ Judge Sarokin.
Page 8: 515998581
- 55 - Sarokin~s ~l~ng, ~is Cou~ shoul~ sup~iso~ au~ority ~o assi~ t~e case ~o ano~ar dls~rict cou~ Judge. Petitioners respe¢tfully s~mi~ impartiality in ~Is matte~ At ~he ve~ leam~, ~u~e Sarokln can no longe= ma~aln ~e "appearance of ~pa~iali~y" that ~hl8 CouE~ -- as we~ as due process -- demands. ~is cou~ is ~powe~ed vi~ sup~iso~ authority ~o ~eassign ~ases ~0 o~e~ dlS~=i=~ Cou~ ~ud~es in orde~ ~o avoid bias o~ ~e appearance of bias. ~ v. ~, ~7~ Y.2d Chualar Co~., 596 F.ad 15~ ~v. ~, SS3 F.~d bano). Reassl~en~ iS approprlata ~O "presage no~ only ~he reality bu~ also f~c~ionin~ Of ~e ~udioi~ as a 671 F.~d a~ 789 ("Impa~lality an~ the appearance of impa~iality In a ~udicial OZ~icaE a~a ~e sine ~a non oZ ~e~erlcan legal
Page 9: 515998582
This Cou~'~ need not gc past ~he first paragraph of the first page of Judge sarckin's opinion to see bias and prejudice. Judge Sarokln literally rails against petitioners' alleged mis~onduut: In light of the current controversy surrounding breast implants, one wonders when our industries will recognize their obligation to voluntarily disoloss risks from the use Of their products. All too often in the choice between ~..,,l~O physical health of consumers and ~he financial well- being of business, concealment is safe~y, and money over morality. ~ Sllp op. at 1 (emphasis added). confusion. This damning accusa~ion is directed against petitioners for conduct alleged (but nc~ proven) by plalntifZ -- allegations that Judge Sarokin nonetheless clearly believes are t~ue. Yet, two of the petitioners (Reynolds and the Tobaooo Institute) have never tried any case (includfngF~£~jl~) before Judge And in ~ the ~ury found -- ~hat ~hsy did ll~ engage in either conspiracy or fraud.
Page 10: 515998583
- 57 - one stop further. No longer satisfied with mereZy attacking petitioners' alleged (and disputed) F~~-~, Judge Sarokin pu~llcly maligns petitioners d~hi~i~l~d~ sllp op. at I (emphasis added). There has been no trial in Ehis case or even a~ evidentlary hearing. Rather, ~udge Serokin has considered plaintiEf's allegations, reviewed a handful of documents in light of ~hose allega~Ions, and wlthou~ guilty. ~udge Sarokin has become "lawyer, ¥1~es|, and consSsten~ ~udge -- impa~lallty." Rese~ve M~ni~= C~. v. Lo~, 529 F.2d 161, IS~-$6 (eth OlEo 1976). purpos~ and one pu~ose onlys TO p~licly reprimand in fao~ ~gagad in ~e conduc~ plaln~Iff alleges. Bu~ Justice and "the assurance ~a~ ~ho arbi~o~ Is no~
Page 11: 515998584
- 58 - predisposed to find against hi=." ~v, ~£~L;~, 446 U.$. 238, 252 (1980). ~180, 1194 ($th Cir. ~984). lndeed~ i~ Is ha~d ~0 see ~udge Sarok~n~s pronounce=ants having any o~.her effeot. opinion in de,all. ~udge sarokln.s opinion was thus under these banner headlinee~ Exhibi~ 1.32 | The news sto~y begins~ A federal ~udge in New yesterday aharged ~hare is dooumonted evidence that tobaooo Industry was involved in the deliberate £~eud designed to oonoealhealth rleXs of Indust~ "~ho king og conoaalmen~ and dlslnfo~a~ion." Expressing outrage over the s~tuat£on~ U.S. Dl~triot ~udge H. Lee Ea~okin said that there is evidence that industry of Ziolals were long aware of the dangers of e=oking and set out to deliberately disaredit and neutralize the adverse information. "Who are these persons who [Footnote continued on nex~ page]
Page 12: 515998585
announced; ~oba¢oo Zndust~ "~in~ of Con~ealmsnt~~ ~udge Says Exhibit B.33 [FooCnotscontinued from previous page] the purpose of making proflCs and who believe that illness and death of consumers is an appropriate oeu~e for their own proaperlty?" Sarokin demanded. research projects conducted by the indust~/ and said the documents "speak for themselves in a voice filled with disdain for the consuming public and its health." 33 This news story begins: A federal Judge has ordered ciga~otte ma~ers to release documents containing evidence that the tobacco in~us~ry has long intended ~o conceal the dangers of smoking from consumers. the tobacco induett~ may be the king of con~salment and dlsinfo~atlon," U.8. District ~udge K. Lee 8a~okln said i~ an angry t~tllng 18sued Thursday. Industry documents indicate ~hat cigarette makers mounted a uonusE~sd public relations campaign and funded special research pro~aots design to discredit avldenoe linking smoking to health problems, Sarokin said.
Page 13: 515998586
~udge Sa=o~ln's opinion v~e in face =orated in vlr~ually avery paper in the country.34 Potantial Ju=o~e thus read again a~d again how a respected "~s king of concealmtn~ and disinf0~a~ion." s~a~en~s go fa~ beyond WNild e~ression Of that ~ay be pe~Issible -- ~ey a~e intended to vilify petitioners and thus s~ep ove~ ~he line. ¢omple=aly any =laim of impar~iali~y~ge Sarokin may once have had. Sarokin's ~ota~ion of l~y exoa~l of privileged do~en~s directly In his Opinion wi~ou~ filing it ~dor seal. ~e ~oted passagls have now been effectively ~eleased ~o ~e world, and Judge Sa~okln has denied ~is Cou~ any oppo~i~y ~o review his holdin~ wi~h ~esp~=~ ~o ~hoso passages. As a ~osul~ of Judge Sa~okinO~ ~sh to p~li~ly =onde~peti~ionor8, have now boon ir~epa~ly ha~ed. ~ud~e 8arok~used~s bench as a bully pulpi~ agalns~ pe~i~ioneEs. Zn~e heavily p~liciz~d~~ial, a~ ~ho end of ~e plaintiffs' case, pe~i~i0ners moved for a dlrec~ad vardlc~ on, ~~, plaln~£~'s 3~ (add ,.ore examples)
Page 14: 515998587
and ¢onsp~raoy ~la£~s. ~n~aad ~o~ion~ ~udge ~arok~n wrote a scathing 33-page op~n~on £nflammatory language, Judge garokin concluded that a ~ury could £ind that petitioners engaged in a oonspAracy "in callous, wanton, willful and reckless disregard for ~he heal~h o£ consumers in an e£fO~'~ to maln~aln sales and profits." ~.l~J~v. Li~aett C~ou~. Yne., 683 F. Supp. 1487, 1493 (DoN.Jo 1958) o He further aaded~ The evidence presented also permits ~he Jury ~o find a tobaooo indus~r~ i~ i~s ~u~nose and deva~atin= in i~ ~. The ~ury may reasonably conoluda the de~andan~e wo~o m~ors of and engaged In ~ha~ oonsplra~y wi~h ~ull ~owladge and disrega~d for ~8 illness and dea~ it would ~ause, ~d ~a~ ~s. cipollone was merely one of I~. (~mphasle added) The EesuZt was inevi~abla~ ~hls language was picked up by vi~cually all news media in ~.he country -- especially in New Jersey. The nax~ day, headlines in the~XEJ~~ (r~e looal newspaper) proclaimed~ Judge Finds Conspiracy By TObaooo F£r~s Zxhibi~ ._.. 3S The B~aen ~ s~.o~'~ began t Evidence in ~he nearly 3-month old clgare~e llabili~y~rlal indlca~ee tha~ the toba~co industry engaged in -a (Footnote continued on nex~ paga~
Page 15: 515998588
Exhibit__. The ~ Post carried this headllne: ~udge Says Tobacco Zndu~tryHid Riskss 'Devious' Conspiracy Vi~ually all other newspapers oarried similar stories.36 The publlo and the Jury -- w~ich was not ss~lueeterad -- thus had ample [Footnote continued from previous page] sophisticated conspiracy,, designed ~o "confuse and mislead the oonsuming publlo" ab~u~ ~he health risks o£ smoking, a federal Judge declared Thursday. ~e case, U.S. District Jud~a H. L~e Sarokln made a swooping assessmen~ of the evidence so ~ar, ocncludlngtha~ it could suppo~ a var~io~ in favor of ~ha deceased plain~lZf~ Rose Cipollene, and her husband, Antonic.~ ~u1~ ~o find a tobacco Industz~ conspiracy, vas~ in its scope, devious An its purpose and devas~atlng in
Page 16: 515998589
- 63 - Sarok£n*s opiniont vh£~h aga£n could only have had one ~ventunl Jury verdict on fraud and conspiracy in pe~itioner~' ~avo~ could do lit~le to overcome the massive publicity or ~he damage done ~o petitioners' rsputa~ion. These are no~ the actions of a £alr and unbiased Judge, ae ~uaranteedby this ¢ou~ and due process. Judge Sarokin must have known tha~ his statements would be published and could ma~sEially affec~ pe~itloners~ all fours with~, in whloh~he Eight circuit Z~ should have ~een obvious to Jud~s L~rd ~at any comments he made migh~ be publicized (defense oounsel asse~s attend ~e proca~din~s) and ~ere~ore could pre~udlce the o~derly trial o~ administration of ~zlal doc~s in ~th federal and e~a~,e courts. Unde~ these 747 F.2d a~ 1193 (emphasis added). Here, as in ~/~E, Judge SaEoki~'s ~ema~ks Moth in 1985 and in 1992 "could prejudice the orderly ~rial of other pending cases" and "materially effect the abili~M of the parries
Page 17: 515998590
case should be raasslgned to another Judge on remand.37 Nor dO these instances of apparent bias stand alone. The history of this uasa and EiP~l~l~ is Zille~ with instances in which ~udgo Sarokin has revealed exactly where his passions lle. These includal -- Explicitly basing hie flret protective order decision on might and power of the tobacco industry and its a~illty to resist the individual claims assayed against it and its individual ~ouDo_In~., 105 F.R.D. 57~, 577 (D.N.~. v. LiaOstt GrOUn. In~,, V85 F.2d 1108, 1114 n.@ (3d Cir. I~)~ plaintiff was addlo~ed ~o clgaret~es -- a critlcal issue in pieoe of evidence was introduced, ~ll~l~v. Liaae~E Orou~. Inc., Cir. Action No~ 83-2864, sllp. op. a~ g n.l (D.N.~. Dec. 7, 1984) (noting that oausatlon may be p~oblsmatic "afte~ the time [Mrs. C£pollone] hadbecome addicted"); 37 This case is also like ~~l~V. Chrysler where ~ho.trial ~udge pttblicly condemned ~he de~endan~s by asie~g ~at.none of i~S people "a:e very of that i~ ¢a~o~ ~a~ee its impaEtlallty in future reaffi~ed ~a~ "the rlsh~ ~ ~e ~=ied bF a ~ud~e who raason~ly f~ee from bias is a pa~ oZ ~e Z~d~on~al ri~h~ ~O a fair ~lal. I£, before a case is ove~, a
Page 18: 515998591
- 65 - Taking over ~he CROSS examination of one of petitioners' ~ey experts (Claude Martin) in ~, Tr. 8341-45 (The Court: .Zf a oigare~te manufacturer put out an ad showing an at~ractlve young woman in a tennis outfit in a nice setting, or put an ad showing a funeral fo~ ~hat woman and said, smoking kills, you mean that second ad would not have an impact upon the infer'marion environment?") Prejudging o~her c~i~ical issues in the case, see, ~.~, ~ v. Liaastt G~ou~..In~., 593 F. Supp. 1146, 1147 (D.N.~. 1984) ("illness and dea~ caused by cigars~"~e smoking" ) ; Id. ("growlng evidence hazardous to one' s health"). ] -- Add ct~.ers. Petitioners have once before asked ~hls Cour~ to rsassig~ this case ~o • different ~udge (bu~ on different grounds). ~ v, Liaaat~ GROUP. Inc., 822 F.2d 335, 347 (3d Cir. 1987). This eou~c denied the shopping." Far from "~udge shopping," we are asking -- who can maintain both the reality and the appearance of impartiality in future proceedings. We respectfully submi~ that due pro~ess d~ande nothing 349 U.S. 133~ 136-37 (1955). Finally, we return to g~whose holding is especially applicable here. There, as here, the distrlet court Judge championed a popular cause against
Page 19: 515998592
- 66 - Eighth Circui~ recognized ~hat a Judge cannot become an advocate for private causes, no matter how high passions flyt Many people will champion what Judge Lord has done in the DalKon Shleld Litlga~ion because of their deep oonvlotlone a~ou~ substantive issues involved. Many individuals and~elr oounsel who have brought claims agains~ Robins obviously have reason ~o applaud a ~rlal ~udge's oondemna~ion of ~he adversary. However, these people over lock,he proper role of a ~udge in the administration of Justice. The ~udtoi~l branoh of the qov~nmsnt ~es no~ ~nd~should never ~eOgme an advg¢~e ~or nrtva~e causes. A federal distrio~ ~udge holds one of ~he moe~ powe~£ul and respected offloos in ~hls coun=ry, proeesees of a OOU~ of appeals end the 747 F.2d e~ 1194. Here, as In LiJ~ andS, "~he appearance of Judge is ~de," Lew~s, 671 F.2d at 789,